Secretary of Labor v. LaFarge Holcim (Commission decision, August 22, 2022)

Plain-English summary

LaFarge Holcim paid one citation in a two-citation assessment and said it timely submitted a contest for Citation No. 9622263 at the same time. MSHA did not receive that contest, and the assessment became a final Commission order. The operator discovered the outstanding balance on January 27, 2022, and sought reopening. The Commission found that LaFarge had attempted a timely filing and that MSHA's non-receipt resulted from inadvertence or mistake. It reopened the assessment and remanded for the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a)
• Outcome: The final assessment was reopened and remanded for further penalty proceedings.
• Key point: An attempted timely contest submitted with payment of another citation supported reopening when MSHA did not receive it.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH       

ADMINISTRATION
(MSHA)           

v.

LAFARGE
HOLCIM

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Docket
No. LAKE 2022-0098

A.C.
No. 20-00051-545546

BEFORE:  Traynor,
Chair; Althen and Rajkovich, Commissioners

ORDER

BY THE COMMISSION:

This
matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act”). On March 7, 2022, LaFarge Holcim filed a motion to reopen a penalty assessment that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).

Under
section 105(a) of the Mine Act, an operator who wishes to contest a proposed penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).

We
have held, however, that in appropriate circumstances, we possess jurisdiction to reopen uncontested assessments that have become final Commission orders under section 105(a). Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“ JWR ”). In evaluating requests to reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure, under which the Commission may relieve a party from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable by the Federal Rules of Civil Procedure”); JWR , 15 FMSHRC at 787. We have also observed that default is a harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to timely respond, the case may be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

The
Secretary of Labor states that the records of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate that a proposed assessment was sent to the operator on November 17, 2021, and was delivered on December 3, 2021, via U.S. Postal Service Mail. The Secretary received payment for one of the two citations at issue on December 14, 2021. The Secretary asserts that the proposed assessment became a final order of the Commission on January 2, 2022, 30 days after its delivery.

LaFarge
Holcim maintains that it timely filed to contest Citation No. 9622263 at the time it submitted payment for the second citation at issue. The operator states that it became aware of the outstanding balance for Citation No. 9622263 on January 27, 2022, and thereafter sought to reopen the final order.

Having
reviewed LaFarge Holcim’s request and the
Secretary’s response, we find that the operator attempted to timely file to contest Citation No. 9622263 and MSHA’s non-receipt was either inadvertent or the result of a mistake. We hereby reopen this matter, and remand the case to the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Arthur R. Traynor, III

Arthur R. Traynor, III, Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

Distribution:

Emily Toler-Scott,
Esq.

Office of the
Solicitor

U.S. Department of
Labor

201 12th St.
South, Suite 401

Arlington, VA
22202-5450

[email protected]

April Nelson, Esq.

Associate
Solicitor,

Office of the
Solicitor

U.S. Department of
Labor

201 12th St.
South, Suite 401

Arlington, VA
22202-5450

[email protected]

John M. McCracken,
Esq.

Office of the
Solicitor

Division of Mine
Safety and Health

201 12th Street
South, Suite 401

Arlington, VA  22202

[email protected]

Chief
Administrative Law Judge Glynn Voisin

Federal Mine
Safety & Health Review Commission

1331 Pennsylvania
Ave. N.W., Suite 520N

Washington, DC
20004-1710

[email protected]

Melanie Garris

Office of Civil
Penalty Compliance

Mine Safety and
Health Administration

U.S. Department of
Labor

201 12th St.
South, Suite 401

Arlington, VA
22202-5450

[email protected]

Eric Friend

Plant Manager

Lafarge – Presque
Isle Quarry

11351 East Grand
Lake Road

Presque Isle,
Michigan 49777

[email protected]